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August 24, 2015Client Alert

Uncertain Future of Extended Employment Authorization for STEM Graduates

In 2008, the Department of Homeland Security (DHS) issued an emergency regulation that added 17 months of employment eligibility to recent graduates holding student visas who received a degree in Science, Technology, Engineering and Mathematics (STEM). This 17-month period was in addition to the 12-month period of employment authorization that applies to all recent college graduates holding student immigration status.

 

Recently, a federal court vacated the 17 month additional employment eligibility period for STEM graduates. Washington Alliance of Technology Workers v. U.S. Department of Homeland Security, U.S. District Court, District of Columbia. The Court upheld DHS’s authority to issue the regulation but vacated the regulation itself because no notice and comment period was provided before the regulation was issued. Furthermore, the Court stayed its decision until February 12, 2016, in order to allow DHS to issue a regulation using the appropriate notice and comment process. The Technology Workers Union, which filed the lawsuit challenging the 17 month addition of employment eligibility, is appealing the case to the D.C. Circuit Court of Appeals. 

 

The President had noted in his November 2014 announcement regarding administrative steps to improve the immigration system that DHS would issue regulations expanding the employment authorization opportunities of recent college graduates. The result in the Washington Alliance case may encourage DHS to timely issue its new regulation using a notice and comment period so as to allow people already enjoying the use of a 17-month STEM graduate employment authorization period to continue working without interruption.

 

A component of the President’s proposed administrative steps to improve the immigration system referenced an enhanced role for colleges/universities in ensuring a connection between a student’s field of study and the job held by the recent graduate. We do not yet know what that additional role will be, nor do we know whether the Court of Appeals will agree with the lower court with regard to the authority of DHS to allow post-graduation employment authorization or at least the extended STEM authorization. Further, we do not know whether DHS will complete its work in time to avoid a disruptive gap in regulations after February 12, 2016. Given the fact that tens of thousands of people are currently working pursuant to extended employment authorization for STEM graduates, there is great interest in bringing clarity to this issue. If you have an employee working on extended employment authorization for recent graduates, please keep an eye on developments in this area. You may need to perform an I-9 re-verification in February of 2016.

 

For more information, please contact your Michael Best attorney; José A. Olivieri at jaolivieri@michaelbest.com or 414.225.4967; or Kelly R. Rourke at krrourke@michaelbest.com or 414.347.4741.

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